Consider creative solutions before claiming undue hardship
Tuesday, September 22, 2015
By Deborah Howden
Accommodating mental illness in a condominium setting is no trifling obligation.
Just like physical disability, both the courts and the Ontario Human Rights Tribunal require that mental illness be accommodated up to the point of undue hardship. This is, by all accounts, an onerous standard.
To the extent that a condo wants to rely on the defence of undue hardship, the burden of proof rests squarely on the corporation. As such, the condo must demonstrate that the accommodation is too onerous because it unreasonably compromises health and safety or it jeopardizes the condo’s continued existence, though the courts have sometimes also considered the effect on other residents.
Again, mental health accommodation is no trifling obligation.
Most challenging in a community living environment is the accommodation of conduct that is distinctly anti-social in nature. How can a condo effectively accommodate mental illness which is accompanied by behaviours such as repetitive vocalization, cursing, delusions, screaming, aggression, or noisiness, for example?
If noise is an issue, the condo may have to actively assist in soundproofing the unit or otherwise reduce the impact of the noise.
In one interesting case from the U.S., a resident with schizophrenia felt compelled to bang incessantly on his unit walls with a baseball bat and yell obscenities though an open window. This behaviour created an unliveable situation for the other residents in the building.
The solution, which was approved by the court, was to seal the window from the outside and give the resident a Nerf baseball bat. In that manner, the resident continued his compulsive behaviour, but other residents were not subject to the accompanying noise and coarse language.
In circumstances where a resident has compulsive hoarding disorder or some similar condition, the corporation may have to arrange for, and assist with, clean-up efforts in the unit. This is precisely what happened in Metropolitan Toronto Condominium Corp. No. 946 v. J.V.M, which involved an owner who had paranoid schizophrenia.
In 2007, the corporation’s property management removed 150 bags of garbage from the unit. In February, 2008, property management independently arranged to have the unit cleaned and disinfected due to an abundance of fecal material and vermin.
Where anti-social conduct is the troublesome behaviour, de-escalation techniques must be identified and put in place. In the Divisional Court case of Walmer Developments v. Wolch, for example, a tenant suffered from schizophrenia and was given to screaming, throwing loose garbage from her unit, shouting profanity and putting her property out in the hall. She would also leave cooking food unattended, which would fill the hallway with smoke.
The landlord brought an application to terminate the tenancy. The Court ultimately found that the disruption to other residents could have been accommodated by contacting family members, who could have intervened when the behaviours became unreasonably disruptive. Therefore, the Court found that the landlord had not discharged its duty to accommodate, there was no undue hardship, and the tenancy could not be terminated.
Obviously, each accommodation scenario will necessarily be fact-specific and often involves some creativity.
In another case out of the U.S., for example, a resident with schizophrenia was constantly leaving pots and pans on a hot stove for hours, causing fire alarms to go off. The matter went before a judge who ordered the oven and stove locked.
A caretaker was hired to come in and cook meals. The caretaker was the only person with a key to the locked cooking elements. This constituted a restriction on the resident’s property rights, but the Court preferred this solution to an order forcing the resident to vacate the unit.
In dealing with mental health illness which causes disruption to the living environment, condos should consider developing a crisis intervention plan which addresses what to do if and when the resident becomes disorderly. Among other things, the plan should include current emergency contact information for the resident’s family members or support persons who are available to intervene when required.
Of course, sometimes accommodation efforts really are to the point of undue hardship. Consider the recent example of Carleton Condominium Corporation No. 348 v. Yves Chevalier.
Mr. Chevalier was a condominium unit owner at Carlton Condominium Corporation No. 348. He also suffered from a mental illness. In 2005, he intentionally removed salt and grit placed on common element stairs by the condo corporation, thereby increasing the risk of slip and fall accidents.
In 2007, he was asked to remove his vehicle from a common element parking space that was assigned to him because the vehicle was not in working condition. Mr. Chevalier subsequently threatened to charge the corporation and its property management with criminal conspiracy. Also in that year, a contractor engaged to carry out work at the corporation was subject to a “barrage of extreme profanity and abuse” by Mr. Chevalier.
In 2012, he, in concert with his tenant, tiled the steps in front of another unit, which constituted an unauthorized change to the common elements. The tiles were eventually removed, but both he and the tenant subsequently continued to effect unauthorized changes to the common elements.
He persisted with bizarre and disruptive behaviour. The court ultimately issued compliance and cost orders, which were ignored. By 2013, there had been enough “antisocial and unacceptable” behaviour creating a series of health and safety issues that in June 2014, he was ordered to vacate his unit.
The upshot is this: notwithstanding accommodation obligations, no condominium has to indefinitely tolerate extremely disruptive behaviour. Communal living, Ontario courts have continued to affirm, requires respect and consideration for one’s neighbours and socially acceptable behaviour.
Deborah Howden is a lawyer and partner in Shibley Righton LLP’s Condominium Law Group. She is a labour and employment law specialist who regularly advises condominium corporations and property management companies.